if punishment can be shown to promote effectively the interest of society it is justifiable, otherwise it is not
bygones are bygones and only future consequences are material to present decisions
Jeremy Bentham
systematic theory of law: laws should take the form of legislatively enacted codes, aiming to achieve the greatest happiness and least pain for the greatest number
punishment ought not be inflicted when it would be misapplied, inefficacious (no power to produce an effect on the will), superfluous, too expensive
theory of legislation:
evil of punishment must be made to exceed the advantage of the offence
the more deficient in certainty a punishment is, the severer it should be
greater offence ought to be subjected to severer punishment
the greater an offense is, the greater reason there is to hazard a severe punishment for the chance of preventing it
incapacitate criminals from continuing to offend was goal also
wanted to cure criminals (rehabilitation)
deterrence will come from increased capacity to catch offenders
Retributivism
wrongdoing merits punishment
it is morally fitting that a person who does wrong should suffer in proportion to his wrongdoing
Emmanuel Kant: punishment must be imposed only because the individual on whom it is inflicted has committed a crime
made a comeback in the USA in the 1970s
Five Models of Punishment
theory of general deterrence - want to discourage people from engaging in criminal activity
specific deterrence - deter against specific crimes. ex: death penalty. remove harm doers from society
rehabilitation - purpose is to reform someone, teach a lesson. Need to make sure that punishment fits offender . Look at unique circumstances of the individual.
retribution - revenge. Morally correct thing to do. Don’t want offended individuals to seek their own justice so we have the state do it.
denunciation - When one is pronounced a criminal, we are making an important public statement.
Incapacitation
works by definition
in order for it to work, it must also mean that incarcerating one robber does not automatically lead to the recruitment of a new robber to replace him
Fairly distribute punishment - 3 models (lots of power to prosecutors as they decide what to charge people with):
common law model – recognized 2 categories:
felonies (punished by death)
misdemeanors (can be jailed for up to one year)
indeterminate sentencing - sentence is a range of punishment
determinate sentencing - specific sentences to specific crimes
The Criminal Act
The requirement of an act (actus reus)
to constitute a crime there must be some omission or commission
criminal law only punishes a person who has committed an act
Omission of an act
charge can be that person omitted (failed) to act
failure to act may constitute a breach of legal duty when:
a statute imposes a duty to care for another
when one is in a certain status relationship to another (ex: mother and infant)
when one has assumed a contractual duty to care for another
when one has voluntarily assumed the care of another
some states have Good Samaritan Acts which makes it criminal to fail to act
Requirement of voluntariness
criminal liability requires the act to be voluntary
sometimes there are medical conditions which cause people to do things they would ordinarily not do - their acts were therefore not voluntary meaning no criminal liability
acts performed while sleepwalking may not be punished as voluntary behavior
Status Crimes
One cannot be convicted of a desire to commit a criminal act. A disease (status) is not criminal.
Cruel and unusual punishment to punish someone for doing daily acts of living in public that are a part of being homeless. This is a status.
Legislative Intent
statutes only apply if the legislature actually intended for them to be used as one is interpreting them
legislative intent must be examined in deciding how to apply statutes
Legality
1. one must be charged with a crime that is cognizable under the law
The Guilty Mind
Moral reasons
Restrict punishment to those that are morally blameworthy
Core image of the morally blameworthy person is one who intentionally harms another person
allocate punishment on basis of flexible standards of blameworthiness
easier to find conduct immoral because it is illegal rather than to find conduct should be punished because it is immoral
must link punishment to moral blame by conditioning liability on bad thoughts
Bad thoughts
desire to harm others or violate some other social duty
disregard for the welfare of others or form some other social duty
guilty mind (mens rea) can be manifested by implementing an ignoble desire or by acting uninfluenced by a noble desire, such as a concern for the safety of others
Requirements of a guilty mind
must know what you are doing is bad in order to be convicted in some cases
An act must be committed voluntarily. There does not need to be intent or knowledge of committing a crime though.
Model Penal Code has boiled it all down to 4 states of mind (see p232):
purposely - conscious object to engage in conduct to cause such a result
knowingly - aware the such circumstances exist; practically certain his conduct will cause such a result
recklessly - consciously disregards a substantial and unjustifiable risk that the material element exists
negligently - person should be aware of a substantial and unjustifiable risk that the material element exists
Mens Rea and Mistake
mistake is not often a reasonable excuse for breaking the law
as long as there was an honest and reasonable mistake, the charge can be defensible
the statutory rape cases
there must be intention; without it is very hard to prosecute
Many jurisdictions for statutory rape crimes say that neither knowledge, recklessness or negligence with regard to the girls age is an element of statutory rape. A girl's age is a strict liability element.
Model Penal Code: Burden of Proving Fact when Not an Element of an Offense
no person may be convicted of an offense unless each element of such offense is proved beyond a reasonable doubt
in the absence of such proof, the innocence of the defendant is assumed
it is not a defense to claim no knowledge of the law; cannot expect criminals to be constantly "brushing up on the law"
mistake of non-governing law may negate the mental element
Model Penal Code (2.04(1)):
ignorance or mistake as to a matter of fact or law is a defense if:
the ignorance or mistake negatives the purpose, knowledge, belief, recklessness or negligence required to establish a material element of the offense; or
the law provides that the state of mind established by such ignorance or mistake constitutes a defense
Causation of Harm
But-for causation
criminal generally confines causes to the class of necessary conditions or acts "but for" which the harmful result would not have occurred.
ex: but for walking across the street, she would not have been hit (if she had not walked across the street, she would not have been hit)
but for x, y would not have occurred
heart attack cases
person has heart attack and dies because of some occurrence
is the person that caused the occurrence responsible for person's death resulting from the heart attack?
if it was foreseeable then yes he was responsible
Forseeability
requires a connection between the actor's culpable mental state and the result
negligent action causes harm only if it leads to harm that is reasonably foreseeable
Intervening Events
defendant is absolved of casual responsibility if it could identify an intervening event that broke the chain of causation
an event can be said to brake the chain of causation if it was a necessary condition for the harmful result
Intervening Actions
assumes individuals are the exclusive cause of their own actions
means that providing someone with means to do harm is not the same as causing the harm oneself
Temporal Intervals
lengthy interval between cause and result raises many problems
longer the interval, the harder it is to blame the crime on defendant
longer the interval, the more plausible it becomes that some other undetected factor has caused the result
Duties
liable for all harm we might have prevented with more diligent investigation and more energetic action
criminal law does limit the casual responsibility to those who have some duty to act
also can be cases where there is a duty not to act
cases:
duty to help save ones life when you know that person is in danger of dying?
is it fair to punish someone for homicide who performed no act and could not reasonably foresee the possibility of death that would result?
Homicide Offenses
Murder - general definition: killing of one human being by another with malice aforethought
must have proximate cause. Many states have one year and a day rule
must show actus reus - an affirmative act or an omission where there was a duty to act
must have mental state (mens rea)
Model Penal Code
only one type of murder
purposely or knowingly; or
committed recklessly under circumstances manifesting extreme indifference to the value of human life (Russian Roulette cases)
recklessness and indifference are presumed if actor is engaged in or is an accomplice in robbery, rape, arson, burglary, kidnapping or felonious escape
model penal code does not recognize an intent to do serious bodily harm as sufficing for murder
MPC requires actual awareness of the risk involved in the conduct (recklessly) - not so long as a reasonable man would have recognized the danger
it is manslaughter if one acts recklessly, but without extreme indifference to the value of human life
four states of mind (mens rea) that malice aforethought encompasses
purpose to cause death (intent to kill)
intent to inflict serious bodily harm - usually subjective: would have the reasonable person realized the extent of the danger? (can be proved by circumstantial evidence: knew act would result in death, knew death was highly likely to occur, use of a deadly weapon, knew injury is highly likely to occur)
extreme recklessness with respect to a serious risk of harm to another's life
under the felony-murder rule, a willingness to undertake even a very small risk of death where the risky conduct is so unworthy as to establish guilt of a serious felony
First degree murder
must be both intentional (deliberate: need a reasonable period of time. must have planned, had a motive, and a manner of killing according to a preconceived design) and premeditated OR
if it involves killing during the course of one of several major felonies specified by statute: robbery, burglary, rape, arson, or mayhem (BARCRAM felonies). Strict liability.
D's ability to deliberate may be found to have been negated by intoxication
punishment: death penalty is possible, or life imprisonment
in CA can include a viable fetus
Second degree murder
if the murder does not fit the description of first degree murder
no premeditation
intent to seriously injure
reckless murder is often used to get around showing malice using the felony murder rule. If a defendant is reckless it can be shown as malice and under the language of the felony murder statute he can be liable for 1st degree murder if during the perpetration of an enumerated felony.
intoxication - when recklessness establishes an element of the offense, if the actor, due to self induced intoxication, is unaware of a risk which he would have been aware had he been sober, such unawareness is immaterial.
punishment: term of years in prison, usually more than ten
Felony-murder rule
principle of treating a death caused in the course of on of the enumerated non-homicidal inherently dangerous felonies as a first degree murder
felon is held strictly liable for all killings committed by him or his accomplices in the course of the felony
vicarious liability - co-felons will be held liable for any murder committed by his cohorts
not guilty: victim or cop kills a felon, co-felon kills himself, reckless felon killed
some states hold that felon does not have to be the one to do the killing; as long as he is the cause, he can be charged with murder
CA does not allow felony murder rule in a situation where the fatal shot comes from the gun of a person other than the robber
some states interpret the rule to protect only innocent persons (does not apply when one felon accidentally kills another felon)
limitations:
when does a felony end?
who qualifies as the murder victim?
proximate causality - felony must be the proximate cause with some degree of foreseeability
perpetration of a felony - a death must occur in the perpetration. This is the time when the felony begins through the defendant's efforts to escape. Most courts say the felony ends when the felon reaches "safe harbor"
merger rule - most courts require felony to be independent of the killing. If actual felony causes death (assault and battery) the felony "merges" to felony-murder.
murder must be committed in furtherance of a felony
Manslaughter
Model Penal Code
committed recklessly or;
a homicide which would otherwise be murder is committed under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse (this leaves room for some subjectivity)
voluntary manslaughter - unlawful killing or a human being without malice aforethought
intentional killing that lacks malice because the killer acted in the heat of passion after adequate provocation or acted in the honest but unreasonable belief that killing was necessary for self defense
provocation must be such that a reasonable man would have been caused to lose his self-control (objective)
intentional killing
if enough of a cooling time has passed, the murder may not be reducible to voluntary homicide
objective - would a normal person have cooled down?
involuntary manslaughter
unintentional
a killing committed recklessly or highly (grossly) negligently - substantial danger of serious bodily harm or death.
some states break into different types of crimes:
reckless manslaughter
negligent homicide
vehicular manslaughter
misdemeanor manslaughter - analogy to felony-murder rule
involuntary manslaughter to cause death by risking fatal harm when the motivating goal establishes guilt of some misdemeanor. Misdemeanor must be inherently wrong.
model penal code and a majority of states have abolished this rule
Defensive Force
use of necessary force: the use of force in self-defense, defense of another, defense of property, and law enforcement.
when a person has a reasonable grounds for believing that there is danger of his being killed or of receiving great bodily harm is imminent, he may act on such appearances and defend himself, even to the extent of taking human life
usually it is not acceptable to take a human life in defense of property
some courts do not accept the right of self defense of the use of force by inmates
MPC: use of force in self-protection
actor must have a reasonable belief that the use of force is immediately necessary for the purpose of protecting himself against the use of unlawful force
limitations on justifying necessity for use of force
to resist an arrest that the actor knows is made by a peace officer
to resist force used by possessor of property when that force is being used under a claim of right to protect the property
actor knows he can avoid the necessity of using such force with complete safety by retreating or by surrendering possession of a thing to a person asserting a claim of right
if the attack takes place in your home, then you do not have to retreat
battered woman's syndrome
a. expert testimony is admissible to be used for a defense
Prevention of crime and Necessity
Mental Illness
Attempt
Solicitation and Impossibility: inciting, counseling, advising, inducing, urging, or commanding another to commit the felony, with the specific intent that the person solicited commit the crime
general info:
the offense is complete at the time the solicitation is made
it is not necessary that the person solicited agree to the crime solicited
mere solicitation is not an attempt to commit the crime solicited
defenses and potential defenses:
impossibility not a defense: that solicitation could not have been successful
withdrawal or renunciation: once the solicitation has been made, it is generally no defense that the solicitor changed his mind
exemption from intended crime: is a defense if the solicitor could not be guilty of the intended crime because of legislative intent to exempt
Complicity
Conspiracy
common law: combination or agreement between two or more persons to accomplish some criminal or unlawful purpose, or to accomplish a lawful purpose by unlawful means
common law elements: an agreement between two or more person; an intent to enter into an agreement; an intent to achieve the objective of the agreement
agreement: parties must agree to accomplish the same objective by mutual action - does not need to be express
multiple crimes: if there is an initial agreement among the parties to engage in a course of criminal conduct constituting all the crimes, then there is only one conspiracy
number of conspiracies in multiple party situations:
chain relationships: a series of agreements all of which are regarded as part of a single large scheme, the situation is regarded as one large conspiracy
hub and spoke relationships: if there are a number of subagreements that are reasonably independent of each other the situation will be regarded as involving numerous different and independent conspiracies
if one person in a two party conspiracy is only feigning agreement the other person cannot be convicted of conspiracy
Wharton Rule: there is no crime of conspiracy unless more parties participate in the agreement than are necessary for the crime
MPC unilateral approach: conspiracy is established by showing that defendant agreed with another to commit the crime (regardless of whether the other person shared in that commitment)
mental state: specific intent
intent to achieve objective
intent to facilitate a conspiracy: intent cannot be inferred from mere knowledge
corrupt motive not required: parties need not have been aware that their plan was an illegal one
conspiracy to commit strict liability crimes: conspiracy is a specific intent crime; therefore a conspiracy to commit a strict liability crime requires intent
defenses:
impossibility: not a defense
withdrawal: not a defense (MPC recognizes voluntary withdrawal as a defense if the defendant thwarts the success of the conspiracy)
punishment: in some cases punishment for conspiracy may be greater than for completed crime
no merger: in most jurisdictions the crime of conspiracy no longer merges into the completed crime - can be convicted of both
liability of one conspirator for crimes committed by other conspirators: each conspirator may be liable for the crimes of all other conspirators if the following two conditions are met:
crimes were committed in furtherance of the objectives of the conspiracy
crimes were a natural and probable consequence of the conspiracy; foreseeable
modern law: require that the object of the conspiracy be a specifically proscribed offense - many states make it a crime to conspire to commit acts injurious to the public welfare - Supreme Court says such statutes must be interpreted narrowly
Theft
Larceny: the trespassory taking and carrying away of personal property of another with intent to steal (a crime against possession)
Trespassory taking: larceny requires the wrongful taking of property from another's possession (if D is already in rightful possession there is no larceny)
trespass is lacking in situations where the owner traps trespasser (lies in wait for thief, maybe even facilitating theft)
taking by employee: a minor employee is held to generally have only custody, so that employer retains possession - if the employer appropriates the property he has committed the necessary trespass and is guilty of larceny at common law
Carrying away (asportation): must carry the property away as well as commit a trespassory taking
courts have watered this requirement down. A slight distance will suffice.
This requirement now viewed as merely a means of assuring that the defendant's dominion and control over the object are established
common law larceny exists only where the property that is taken is tangible personal property
intangible things include stocks, bonds
trade secrets are intangible but can be the subject of larceny under modern codes
personal property of another: when the defendant and another person are co-owners there can be no larceny (a few states have changed this)
with intent to steal:
must have intent to permanently deprive owner of his property
must have actual ability to return the property
if D takes property of another with intent to collect a debt or satisfy a claim, this will generally negate intent to steal
larceny requires a concurrence of taking and intent
Degrees of larceny: almost all states divide larceny into petit and grand (difference depends on value of property taken)
Embezzlement: a fraudulent conversion of the property of another
conversion: D must convert the property (deprive the owner of a significant part of its usefulness)
property of another: the major distinction between larceny and embezzlement is that the latter is committed by one who is already in lawful possession of the property before he appropriates it to his own use
taking must be a fraudulent taking: a common defense is that the defendant intended to return the property taken; if he has substantial ability to do so this may be a defense
an intent to return equivalent property (commonly money) is commonly accepted as no defense
False pretenses: a false representation of a material present or past fact which causes the person to whom it is made to pass title to the property to the misrepresenter who knows that his representation is false, and intends to defraud
only if title is actually passed with there be false pretenses
handing over money is the same as passing title
intent is required: is met if either:
D knows the representation is untrue
D believes but does not know that the representation is untrue
D knows that he does not know whether the representation is true or false
defenses that most likely will not work:
the representation would not deceive an ordinarily intelligent man (law is supposed to protect those who cannot take care of themselves)
victim has suffered no pecuniary loss
crimes related to false pretenses: bad checks, mail fraud, forgery, confidence games, credit card legislation
Consolidation of theft crimes
California and New York have joined larceny, embezzlement and false pretenses into one unified crime, usually called theft (this is the minority)
Model Penal Code has consolidated the three crimes along with receiving stolen property, blackmail or extortion, all into category of theft
Extortion, Robbery, Burglary
Extortion (some states is called blackmail): if D obtains property by a threat of future harm
Robbery: larceny committed with two additional elements:
property is taken from the person or presence of the owner
the taking is accomplished by using force or putting the owner in fear
taking must be by use of violence or intimidation
reasonable man standard is NOT applied: irrelevant that a reasonable man would not have been apprehensive of bodily harm
the taking must concur with violence or intimidation
Burglary: (common law) breaking and entering of the dwelling of another at night with intent to commit a felony
breaking: opening must be created by the burglar
most states have abandoned breaking requirement for all degrees of burglary
entry: any entry must follow; any part of the D's body entering the structure is considered entry
nearly all states still impose this requirement
dwelling of another: most states require a dwelling for higher degrees of burglary, but a structure also counts.
it is not required that the house be occupied at the particular moment of entry
nighttime (after sun has set) is no longer a requirement
about half the states impose this as a requirement for higher degrees of burglary
intent to commit a felony: not required anymore; however all states have the requirement that the defendant had the intent to commit some crime